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Who Owns the Rules of War? The War in Iraq Demands a Rethinking of the International Rules of Conduct

American University - Washington College of Law; Stanford University - The Hoover Institution on War, Revolution and Peace; Brookings Institution - Governance Studies

Abstract:

The war in Iraq requires a rethinking of the rules of conduct in war, international humanitarian law. The nature of assymetric warfare in the conflict has turned out to be less a question of technological disparities than the weaker side turning to systematic violations of the laws of war as its method. Over time, we risk creating an international system in which it is tacitly assumed and permitted that the weaker side fight using systematic violations of the law as its method. Part of this trend arises from the biases of 1977 Protocol I which blessed activities of irregular forces operating without uniforms and commingled with civilians. While the United States rejected this protocol partly because it objected to reductions in the level of civilian protection in the protocol, it was endorsed by most leading human rights organizations, seemingly out of a preference for internationalism rather than caring about the fundamental substantial issue of civilian protection. The trend of the last twenty years which has shifted "ownership" of the laws of war - the ability for shape and interpret them - from leading militaries to international NGOs has gone too far, and "ownership" of the laws of war and their meaning needs to shift partly back to the "state practices" of leading democratic sovereign states that actually fight wars.